When information from employee's doctor isn't enough
Question: Are there any legal considerations to not accepting the medical information from an employee’s doctor and requesting an independent medical examination to support an employee’s medical leave?
Answer: Employers are entitled to request medical information to make decisions about accommodating an employee or potential employee or to confirm an employee’s absence for medical reasons. However, there may be situations in which the information provided by an employee’s treating physician appears to be inaccurate or inadequate. In such cases, an employer will often request further and better medical information from the treating physician, and in some circumstances, may request an independent medical examination (IME).
An IME may or may not be appropriate depending on the circumstances:
• When the employer has the contractual right to obtain an IME under an employment agreement or collective agreement, an employer may request an IME.
• Employers can obtain an IME where legislation specifies the employer has the ability to do so, or when the employer requests an IME and the employee agrees.
• Where an employer cannot reasonably expect to obtain the information it needs from the employee’s medical expert to satisfy the employer’s duty to accommodate. In this circumstance, the employer must have a reasonable and bona fide reason to question the adequacy and reliability of information provided by the employee’s expert to request an IME.
• An IME cannot be requested to second-guess an employee’s medical expert and is not an unrestricted right.
Importantly, employees are expected to meaningfully engage in the accommodation process and provide employers with a reasonable amount of information that will allow employers to assess accommodation options. A failure of an employee to provide accurate and necessary medical information may lead to an employer’s request for an IME.
In one recent Ontario decision — Bottiglia v. Ottawa Catholic School Board — the Divisional Court held that it was appropriate for an employer to request an IME after the employee’s medical expert made a sudden change in recommendation and showed a lack of knowledge of the employee’s workplace. In that case, the employee had been on an extended leave of absence and was seeking a significant accommodation in his return to work. The court found that the employer had experience returning employees to work and had reason to question whether the employee’s return to work plan was adequate, appropriate, or premature given the significant accommodation sought.
Overall, an employer requesting an IME should consider each case individually and diligently. Before demanding an IME, employers should carefully consider whether it would be sufficient to ask for further information from an employee’s treating physician.
There are two predominant legal risks that may arise if an IME is inappropriate in the circumstances. First, if an IME is requested, the employee refuses to attend at the IME, and the employer does not provide appropriate and reasonable accommodation on that basis, the employer may be found to have contravened its obligation to accommodate the employee under human rights legislation. That scenario could give rise to potential damages for injury to dignity, feelings and self-respect, lost wages (if applicable), or other non-financial remedies.
Second, if an IME is requested and the employee co-operates, the employer may be found in contravention of provincial or federal privacy legislation. In one case, the Privacy Commissioner found that the employer’s collection of employee health information was abusive inasmuch as the employer did not prove that it was necessary. The commissioner concluded that the employee’s complaint of breach of privacy by her employer was well founded: see The Privacy Commissioner of Canada, Finding #233.
For more information see:
• Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517
• The Privacy Commissioner of Canada, Finding #233, 2003 CanLII 5181 (P.C.C.)
Tim Mitchell practices management-side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or firstname.lastname@example.org.